Opinion 22-192

February 2, 2023

Digest:         (1) A full-time city court judge whose part-time co-judge is an assistant county attorney need not recuse from cases in which other attorneys from the county attorney’s office appear, provided that the co-judge has had absolutely no involvement in the matter.

(2) A full-time city court judge may accept an appointment by the city to serve on the board of a not-for-profit organization that receives state funding to rehabilitate blighted properties, provided the organization is not likely to appear in the judge’s court or to be engaged regularly in adversary proceedings in any court.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(A)(1)-(3); 100.4(C)(1); 100.4(C)(2)(a); 100.4(C)(3)(a)(i)-(ii); 100.4(C)(3)(b)(iii); 100.6(B)(3); Opinions 19-136; 16-51; 15-15; 09-20; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time city court judge asks two unrelated questions, about potential disqualification based on their part-time co-judge’s outside governmental employment and about the inquiring judge’s own extra-judicial activities.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

1. Co-Judge’s Governmental Employment

The inquiring judge has a part-time co-judge who is permitted to practice law. The co-judge is also employed as an assistant county attorney, handling abuse and neglect cases in another court. The inquiring judge asks if it is ethically permissible to preside in matters where other attorneys from the county attorney’s office appear.

A judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).¹

         There is no prohibition on a judge’s presiding over a matter in which their co-judge’s governmental colleagues appear, so long as the co-judge had no involvement whatsoever in the specific matter, at any point in time. Opinion 09-20 is squarely on point. As we advised there, a full-time city court judge whose co-judge is also an assistant county attorney need not disqualify “in matters involving the County Attorney who employs his/her co-judge or when another assistant county attorney from the same County Attorney’s office appears in the judge’s court” (id.). However, the judge must disqualify “in any proceeding where the County Attorney’s office appears if his/her co-judge was involved as an assistant county attorney” (id.).

2. Service on Board of a Not-for-Profit Corporation

         The judge also asks if it is permissible to serve as a city-appointed board member of a not-for-profit corporation that rehabilitates blighted properties. The board operates independently of the city and receives its funding from the state. Nothing in the inquiry suggests that the organization’s activities involve matters of substantial public controversy.

         A judge’s extra-judicial activities must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). In general, a full-time judge may serve as an officer or director of a not-for-profit civic organization, if it is unlikely to “be engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][3][a][ii]) or to “be engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][3][a][i]).

         We have said a full-time judge may serve on the board of directors of a not-for-profit local development corporation, where the position does not interfere with the judge’s judicial duties, and the entity is unlikely to be engaged in adversarial proceedings that would ordinarily come before the judge or regularly engaged in adversarial proceedings in any court (see Opinions 16-51; 15-15). Moreover, where a full-time judge’s service on a not-for-profit organization’s board is otherwise permissible, we have said it does not become impermissible merely because a governmental official appoints the judge to the board (see Opinion 19-136).²

         Here, too, we conclude a full-time city court judge may accept an appointment by the city to serve on the board of a not-for-profit organization that receives state funding to rehabilitate blighted properties, provided the organization is not likely to appear in the judge’s court or to be engaged regularly in adversary proceedings in any court.

         As a reminder, while the not-for-profit organization’s state funding is not a bar to the judge’s participation, we note that the organization’s work is unrelated to the law, the legal system or the administration of justice. Accordingly, a full-time judge must “not appear at a public hearing before an executive or legislative body or official” on the organization’s behalf (22 NYCRR 100.4[C][1]) nor make recommendations to public or private fund-granting organizations concerning the organization’s projects and programs (see 22 NYCRR 100.4[C][3][b][iii]).

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¹ We note that colleagues in a governmental law office are not “partners or associates” within the meaning of Section 100.6(B)(3) (see Opinion 09-20).

² As noted in Opinion 19-136, a not-for-profit entity “does not become ‘a governmental committee or commission or other governmental position’ within the meaning of Section 100.4(C)(2)(a) merely because a governmental official is empowered to appoint” one of its board members.